BHANU PRAKASH SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard the leaned counsel for the petitioner and the Learned Counsel for the State. No one appeared for the complainant respondent No. 2 in spite of repeated calls even though he has appeared through advocate upon notice. The petitioner has filed this writ application for quashing the order dated 24.5.2007 passed by Shri Sirish Dutta Tripathy, learned Judicial Magistrate 1st class, Bokaro, in C.P. Case No. 4 of 2006, whereby, after an enquiry in the said complaint case, the Court below has found that prima facie case under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act'), is made out against the petitioner and has directed for issuance of process against the petitioner.

(2.) The complaint petition filed by the complainant respondent No. 2 has been brought on record as Annexure 1 to this writ application, which shows that the accused petitioner had given one post dated cheque for rupees fifteen lakhs to the complainant in lieu of some loan given by the complainant, with the assurance that the loan amount would be returned back positively by the month of June, 2005. As the money was not returned back to the complainant by the month of June 2005, the complainant deposited the cheque in the bank which bounced. It is stated that thereafter, the complainant gave a legal notice to the accused and upon getting the notice, the accused met the complainant and assured him that the loan would be returned back to the complainant by 11th November 2005. Even after this assurance, when the money was not returned, the complainant again deposited the cheque in the bank on 14.11.2005 but the cheque was again bounced and again legal notice was given by the complainant, but the cheque amount was not paid back to the complainant. With these allegations, the complaint petition was filed in the Court of Chief Judicial Magistrate, Bokaro on 4.1.2006, which was registered as C.P. Case No. 4 of 2006. It, appears that after enquiry in the complaint petition, the Court below by order dated 24.5.2007 has found the case prima facie true against the petitioner and has directed for issuance of process against the petitioner.

(3.) Learned Counsel for the petitioner has submitted that the institution of the complaint case against the petitioner and the subsequent order dated 24.5.2007 passed therein, are barred by limitation, inasmuch as, Section 142 of the N.I. Act clearly prescribes that no Court shall take cognizance of the offence punishable under Section 138 of the N.I. Act unless the complaint is made within one month of the date on which, the cause of action arises under clause (c) of the Proviso to Section 138 of the N.I. Act, which provides that Section 138 of the N.I. Act shall apply only if the drawer of the cheque fails to make the payment of the cheque amount within 15 days of receipt of the legal notice. Leaned counsel accordingly, submitted that if within the fifteen days of the service of legal notice the amount is not paid back by the drawer of the cheque, the complaint is to be filed within one month thereafter and if the complaint is filed after the expiry of the period of one month thereafter, the cognizance of the offence is clearly barred under Section 142 of the N.I. Act.